As Sri Lanka strives towards its third republican
constitution, social and political divisions on fundamental constitutional
issues may derail the reform process. The widening of the space for critical
thinking and debate, and a well thought out communication strategy are
necessary for the success of the process and the legitimacy of the outcome - writes Dr Asanga Welikala.

Background

Sri Lanka is
undergoing profound constitutional reforms since January 2015, when Maithripala
Sirisena unexpectedly defeated
Mahinda Rajapaksa in the presidential elections with the support of the
then opposition. Sirisena ran on a platform of undertaking constitutional
reforms to address the problem of a hegemonic executive presidency. Accordingly,
the Nineteenth
Amendment to the Constitution (May 2015) reduced the powers of the
President in favour of the Cabinet and Parliament, and introduced a series of
good governance oversight institutions. Following the August 2015 parliamentary
elections, which returned the national unity government of President Sirisena
and Prime Minister Ranil Wickremesinghe with a majority, a process has been
underway to draft Sri Lanka’s third republican constitution.

In March 2016,
the Parliament of Sri Lanka by a unanimous resolution established
a Constitutional Assembly (CA) to consider constitutional reforms. The CA
comprises all the Members of Parliament but sits as a separate body. The rationale
for this mechanism is both inclusivity – so that all MPs of all parties have a
role – and flexibility – avoiding the rigidity of parliamentary procedure and
standing orders. The CA is led by a Steering Committee chaired by the Prime
Minister and includes all parliamentary party leaders and other MPs. The CA is
also divided into subcommittees chaired by senior MPs, which will report on
fundamental rights, the judiciary, public finance, the public service, law and
order, and centre-periphery relations. The areas of electoral reform,
devolution, and the central executive are dealt with directly by the Steering
Committee. The Steering Committee and the subcommittees are currently
deliberating on their assigned thematic areas, including taking evidence from
experts and civil society. The subcommittees are due to submit reports towards
the end of July 2016.

The Steering
Committee will then consolidate the reports into one and present that together
with a draft constitution bill to the CA for debate. The CA is empowered to
approve amendments before passing the bill with a simple majority. The bill
then goes to Parliament – the body empowered to enact constitutional amendments
under the current constitution, which must pass it with a two-thirds majority.
If this stage is successful, the President must submit the bill to a
referendum. Legally, the people must approve the new constitution by a simple
majority. However, from the perspective of political legitimacy, it would be
important for the constitution to receive majority support within each of the four
main communities (the Sinhalese, Tamils, Muslims, and the Tamils of recent
Indian origin).

This is especially
so within the majority Sinhalese community. Sirisena’s detractors have pointed
out that his winning majority in the presidential election was cobbled together
with all the minorities plus a portion of the Sinhalese, whereas President
Rajapaksa obtained a majority among the latter. This makes, as the argument
goes, Sirisena too beholden to the minorities and therefore somehow inimical to
the interests of the majority. This might be a deleterious and irresponsible
position in a plural society, but it is one that opponents of the current
reforms would grab with alacrity. The government should therefore make efforts
to win majorities within all communities in the referendum to preclude such
attacks on the new constitution’s legitimacy.

The outcome of public consultations

Prior to the
establishment of the CA, in December 2015, the government set up the Public Representations
Committee on Constitutional Reform (PRC). This was historically significant
because it was the first time since the Soulbury Commission of 1945, which
recommended independence for Ceylon to the British government, that such an independent
body had been constituted to solicit public views on constitutional reform.
Made up of political party nominees and independent academics and lawyers, the
PRC held sittings in every district and took oral and written submissions from
the public. In all, 3655 submissions were made to the committee, and it is
evident from a perusal of the list, that they came from all sections and
interests of society and from every ethnic and religious community.

The PRC published
its report in May 2016, containing an analysis of the submissions as well as
its recommendations on the whole gamut of constitutional issues ranging from
the preamble, symbols, and the nature of the state, through fundamental rights
and the structure of government, to devolution and power-sharing. In the main,
the majority views of the committee reflect a fairly liberal consensus about
the direction of constitutional reform, perhaps replicating the progressive
mood of the public following the historic elections and regime change of 2015.
Thus there is wide consensus on foundational values such as democracy,
republicanism, constitutional supremacy, and fundamental human rights
(including to expand the scope of justiciable rights to socio-economic and many
other third generation rights); on constitutional doctrines such as the
separation of powers, the rule of law, and the independence of the judiciary;
and on institutions such as the parliamentary form of government, and a
Constitutional Court (or a special Constitutional Bench of the Supreme Court)
with comprehensive powers of judicial review including to strike down primary
legislation.

At the same
time, however, the areas in which the PRC was unable to make unanimous
recommendations are historically some of the most contentious in Sri Lankan
constitutional reform debates. The Committee’s inability to reach consensus
reveals the continuing reality of deep divides, although even in this respect,
there are some surprises. For example, in relation to the Buddhism clause,
which since 1972 has given a “foremost place” to Buddhism and placed a duty on
the state to foster and protect it, the PRC members were so divided that they
have proposed six different options, none of which enjoy the support of a
majority of members. Similarly, a majority of ten members supported a textual
formulation for the description of the nature of the state that omitted the
term “unitary state”, whereas six members endorsed a formulation that included
“unitary state” but which stressed its unity and territorial integrity rather
than centralising meaning, while only one solitary member demanded the
retention of the present Article 2 which provides that “The Republic of Sri
Lanka is a Unitary State”.

The areas of
accord as well as of tension in the PRC report illustrate well the current
dynamics of the constitutional reform process. The dramatic elections of 2015
were not the harbinger of constitutional revolution or even transition in any
strong sense, although it was something more than a routine change of
government. While there is public expectation that democratising and
rights-strengthening changes will be done, this does not extend to a wholesale
overhaul of every aspect of the Sri Lankan state. Thus the widespread support
for the expansion of fundamental rights and return to parliamentarism are not
matched by a commitment to the secularisation of the state, and, despite the
PRC report, the government’s reluctance to face a referendum without the
unitary state clause demonstrates that there is little consensus about
power-sharing except for some modest extensions to the existing devolution
framework.

Beyond the “federal” v “unitary” debate: A pragmatic
approach

In relation to
devolution, the Steering Committee has adopted the sensible method of
discussing the concrete details of what beyond the existing measure of
devolution under the Thirteenth Amendment to the Constitution (1987) is needed,
especially for the Tamil-majority Northern Province, rather than getting mired
in the “labels” debate. Past constitutional negotiations in relation to a
settlement for Tamil aspirations to autonomy have almost invariably fallen at
the first hurdle of disagreement as to whether the state should become
“federal” as the Tamils demand, or remain “unitary” as the Sinhalese desire. In
the current process, this futile approach has been eschewed in favour of a more
pragmatic strategy, which due to the atmosphere of goodwill that exists between
the government and the Tamil National Alliance (TNA) has made for substantial
progress.

In going beyond
the Thirteenth Amendment, issues that have been under discussion include the reduction
of the powers of the provincial governor (the principal agent of the central
government in the province) in favour of the provincial board of ministers; the
abolition of the concurrent powers in favour of a two-list model of powers reserved
for the centre and provincial powers; adjustments to administrative and
financial arrangements so as to reduce over-centralisation; and an enhancement
of the powers of provincial high courts. More difficult have been the
devolution of police powers and control over state land, both of which have
been traditionally resisted in the south, even though the proposals for
devolution in these respects are exceedingly modest and well-balanced against
any threat to the unity of the state.

Nevertheless,
the salient point is that all these contentious issues are being discussed in a
constructive and pragmatic spirit that is refreshingly unlike how these matters
were approached under the previous Rajapaksa government. The emerging consensus
should at least address the deficiencies of the Thirteenth Amendment and in
that way enhance devolution, even if it does not address all the demands of
Tamil nationalists for a federal solution. This is not to say that the “labels”
issue is irrelevant.

The government
is not confident of carrying the referendum among the Sinhalese of the south if
the new constitution does not contain some reference to the unitary state,
whereas for the Tamils, the unitary state is both a symbolic affront to their
desire for equality as well as a substantive obstacle to meaningful devolution.
Hence, at some point in the on-going negotiations, this difficult question will
have to be dealt with. Options under consideration include constitutional
silence on the self-description of the state (similar to the Indian model), the
development of a neologism to capture the core idea of unity in diversity, or
to include the unitary state in the constitutional text but to define it
expressly and narrowly so as to stress the commitment to unity and territorial
integrity (including an explicit prohibition on secession) and in this way to
limit its substantive potential to fetter devolution. Another such vexed issue
on which the TNA is extremely unlikely to get what it wants is the merger of
the Northern and Eastern Provinces into one – a longstanding demand of Tamil
nationalists who claim the two provinces as one Tamil traditional homeland. In
the ethnically mixed east in which no community is a clear majority, both
Muslims and Sinhalese have strongly resisted any attempt to merge with the
north.

Towards a parliamentary system of government

The government
won a mandate for the abolition of presidentialism in the 2015 elections, and has
already substantially reduced
the powers of the executive presidency through the Nineteenth
Amendment to the Constitution. The expectation is that the new constitution
would restore the parliamentary form of government. Nevertheless, debates
remain on the exact mode of selecting the prime minster in a future
parliamentary system of government. In particular, there has been discussion in
the Steering Committee about the option of providing for the direct election of
the prime minister.

The radical
innovation of the direct election of the prime minister seems to be based
on three rationales: to ensure the stability of government in the context of
the new MMP electoral system, which may not yield stable majorities; to provide
the people with an opportunity to elect the chief executive as they have been
accustomed to under the presidential constitution; and the hope that having the
entire country as one electorate would incentivise prime ministerial candidates
to appeal to all ethnic communities, thereby promoting national unity and
moderation in politics. However, none of these factors were watertight
justifications for the innovation of direct election, and it seems now that
constitution-makers would opt for less radical solutions. This could include
the requirement of pre-election nomination of prime ministerial candidates by
political parties coupled with a post-election parliamentary investiture vote.
These two requirements would give the prime minister a further layer of
legitimacy and authority than under traditional Westminster systems.

Changes to the electoral system

At the time of
writing, a political consensus has been reached concerning the main principles
of the new Multi-Member Proportional (MMP) electoral system, although some
significant details are yet to be worked out. The current pure proportional
representation (PR) has been critical to ensuring the pluralism of legislative
representation, especially for smaller minorities like the Muslims and Tamils
of recent Indian origin. But it has been heavily criticised for breaking the
connection between voter and representative because of the large size of
electoral districts. For the same reason, it has also been seen that the system
privileges those with access to large resources – in terms of both money and
the capacity for electoral violence. The MMP system combines PR and
constituency-based first-past-the-post (FPTP) electoral system. This
combination restores the relationship between the voter and the representative
while ensuring the overall proportional representativeness of the legislature. Some
of the details that remain to be resolved include whether to base the PR
allocations on a provincial or state-wide basis, and in relation to the FPTP
element, the delimitation of some boundaries and the provision for multimember
constituencies in ethnically mixed areas.

Concluding remarks: A hopeful but uncertain reform
process

The tacit
agreement at the highest levels of government that there is only a very short
window of opportunity for constitutional change has determined from the outset
an attenuated process. There are some good reasons for this conclusion: the
rump of Rajapaksa loyalists within President Sirisena’s party are waiting for
any opportunity to derail the process and bring down the government, and the economic
climate is extremely challenging with the government likely having to take
unpopular austerity measures towards the end of the year. But the progress that
is being made within the CA process is virtually unknown to the public at
large, and there is very little media commentary and debate on constitutional
reform. It can only be hoped that this conspicuous absence of political
communication would not come back to haunt the government when the constitution
bill is put to referendum. Constitutional referendums entail a highly distinct
species of politics that advantages populist forms of politics like nationalism
and the sort of anti-reform demagoguery that is former President (and now de facto leader of the political
opposition) Rajapaksa’s forte. As even the UK’s Brexit referendum
has vividly shown, political elites and elitist politics can be blown away by
referendum campaigns in which effective slogans that incite emotion are much
more effective than appeals to reason through nuanced arguments and
dispassionate debate. A badly informed public only exacerbates the problem and
therefore the government’s lack of a strategy of political communication is
perplexing.

Equally
importantly, the restricted nature of the process has cut down the space for
critical thinking and debate even within the pro-reform political space. For
example, the full implications of constitutionalising socio-economic rights or
strong-form constitutional review in the context of local conditions as well as
comparative experiences and alternative institutional models have not been
adequately debated. Instead, they are likely to be included because of their
popularity. The fear of anti-reform forces using viewpoints critical of the
elite consensus on these issues in strategic or tactical ways has been such
that the drivers of the process have been extremely reluctant to allow free and
open debate on them. Instead, political leaders rely almost exclusively on the
confidential advice of trusted confidants and advisors, which, while no doubt
of high quality, is not the same thing as open debate in a constitution-making
process. While the unprincipled character of the political opposition that
induces this attitude is very real, the failure to consider the fullest legal,
political, and economic implications of such wide-ranging changes such as justiciable
socio-economic rights and comprehensive constitutional review could store up
problems for the future, which may cause implementation difficulties that could
potentially undermine the legitimacy of the constitution.

A final note of
concern about the coming weeks of constitution-making is the view that is being
put out by some in the President’s party that what is needed is not a new
constitution but piecemeal reforms over the course of the current parliament.
Accordingly, the argument goes, electoral reforms can be embodied in a
Twentieth Amendment to the current constitution to be enacted immediately. Then
there could be further discussion about possible devolution reforms. The sting
in the tail is the argument that the quid
pro quo for devolution is the retention of the current executive
presidency, on the grounds that more devolution requires to be balanced by a
unifying national institution in the form of the president. The underlying
rationale for this line of argument is more prosaic: many in the President’s
party fear that if Sirisena becomes merely a titular president, then they will
have no access to state resources with which to fight the next general election
against the rival party led by the Prime Minister. To be fair, President
Sirisena has himself been nothing other than publicly consistent about the fact
that his extraordinary mandate in the January 2015 presidential election was to
abolish the office to which he was elected. But if this line of thought within
his party gains any traction, then the prospect of obtaining the two-thirds
parliamentary majority for a new constitution vanishes, and with it the hopes
for Sri Lanka’s third republican constitution.